SCOTUS: EPA's Clean Water Act decisions can face court challenges

The Supreme Court dealt a blow to the EPA on Wednesday with a unanimous ruling that allows some of the agency’s decisions under the Clean Water Act to be challenged in court.

Property owners previously had no way to ask a judge to strike down EPA’s decisions on whether their property included wetlands. Instead, they had to refuse to comply with the agency’s orders and face fines that increased daily fines until the EPA took them to court — by which time, critics said, the penalties could amount to millions of dollars.

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But in Sackett v. EPA, the high court said Wednesday that owners can go to a judge to challenge the EPA’s determinations under the Administrative Procedure Act. The justices didn’t rule on the specifics of the Sacketts’s case.

The case involved Chantell and Michael Sackett, who had graded their property in an Idaho residential community. The EPA ordered them to reverse the grading after determining that their property included wetlands, which meant the work — done without an agency permit — violated the Clean Water Act.

The Sacketts, believing their property did not include waters covered under the Clean Water Act, sued, saying the order was “arbitrary” and violated their right to due process.

That kind of lawsuit can go forward, the Supreme Court ruled.

“Nothing in the Clean Water Act expressly precludes judicial review under the APA or otherwise,” Justice Antonin Scalia wrote for the court.

Scalia dismissed the Obama administration’s argument that the government is less likely to issue compliance orders if judicial review is allowed.

“There is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties into ‘voluntary compliance’ without the opportunity for judicial review — even judicial review of the question whether the regulated party is within the EPA’s jurisdiction,” Scalia wrote. “Compliance orders will remain an effective means of securing prompt voluntary compliance in those many cases where there is no substantial basis to question their validity.”

In a concurring opinion, Justice Ruth Bader Ginsburg noted that, while she agrees that the Sacketts can challenge EPA’s jurisdiction in court, Wednesday’s ruling did not wade into the specifics of the case.

That leaves the door open “for another day and case” on whether property owners can challenge the “terms and conditions of the compliance order,” Ginsburg wrote.

The justices sent the Sacketts’s case back to a lower court for consideration under the Supreme Court’s new guidance.

In his own fairly informal concurring opinion, Justice Samuel Alito slams the water law itself and calls on Congress for a long-term fix to “provide a reasonably clear rule regarding the reach of the Clean Water Act.”

The administration’s position “would have put the property rights of ordinary Americans entirely at the mercy of Environmental Protection Agency (EPA) employees,” Alito wrote.

“Allowing aggrieved property owners to sue under the Administrative Procedure Act is better than nothing, but only clarification of the reach of the Clean Water Act can rectify the underlying problem,” he added.

Erica Martinson contributed to this report.

This article first appeared on POLITICO Pro at 12:57 p.m. on March 21, 2012.

Readers' Comments (12)

The case involved Chantell and Michael Sackett, who had graded their property in an Idaho residential community. The EPA ordered them to reverse the grading after determining that their property included wetlands, which meant the work — done without an agency permit — violated the Clean Water Act.

The Sacketts, believing their property did not include waters covered under the Clean Water Act, sued, saying the order was “arbitrary” and violated their right to due process.

Great news, but as Justice Alito stated, Congress needs to clarify the Clean Water Act.

The EPA has pounded homeowners and developers in California using their Super Agency powers to force people to cower at their mercy. Citing "there was water here at one time" was all that was needed to end improvments, and have agents cozy up to the environmentalist radicals who run the EPA.

Bring on the lawyers, at least bring on the Rich peoples lawyers. I thought Republicans hated frivolous lawsuits? So if it's someone suing to protect their civil rights, or legal rights or employment rights or right to clean water or air then it's frivolous. On the other hand if they sue to protect their property rights then it's OK, right? Got it.

In his own fairly informal concurring opinion, Justice Samuel Alito slams the water law itself and calls on Congress for a long-term fix to “provide a reasonably clear rule regarding the reach of the Clean Water Act.”

The above statement is really the only one that gets to the heart of the problem. We elect these (so called) representatives to do their jobs of administration of The Federal Government. But what we have gotten these last few decades is a group of self important, CYA at all cost, parasites that write vague laws purposely so that someone else will end up taking responsibility when the regulations are administered. They then can cry out in disbelief when another agency does the job that they were supposed to do in the first place!

What happened was that their property contained a pipe drain that was plugged with waste.

They asked for the authorities to clear it out and they told them they didn't have the money and to go ahead and clear the pipe which they did on a completely landlocked lot.

Because they cleared the drain, the standing water, drained off the grass and the EPA came in and said they disturbed a "WETLAND".

The EPA maintained that a compliance order is nothing more than a warning and that they cannot be challenged until they actually enforce the fines, which were racking up by the day.

The EPA, in collusion with the 9th U.S. Circuit Court of Appeals, told the couple they could not even challenge the decision unless they went through that expensive process of FORCING them to build and then be fined almost $75,000 each day.... the agency refused to hold a hearing and the 9th Circuit Court said the Sacetts had no right to judicial review

The court decided that the EPA must provide a process through which a challenge to its decision can be addressed in a meaningful way.

The EPA avoids courts by abusing the compliance rules and subject ordinary people

They won the right of ordinary people to go to court, over the compliance rules of the EPA by a judgement of 9-0.

Kagan said it was a “strange position” for the government to adopt in insisting that the property owner has no right to a hearing on such an order.

Chief Justice John Roberts Jr. turned the question back on Malcolm Stewart, the government attorney assigned to defend the EPA’s actions.

“What would you do if you received this order?” he asked.

Stewart wouldn’t answer.

Justice Antonin Scalia called it the “high-handedness of the agency” when the EPA demanded the couple turn their land into a protected preserve, installing vegetation that wasn’t there before they started their project.

The government did not contest the recitation when Alito summarized what had happened.

Justice Ruth Ginsburg noted that the couple had sought a hearing from the EPA over the controversy, “and the EPA said no.”

Samuel Alito said that the scenario was one that most homeowners would say “can’t happen in the United States.

And we the taxpayers, PAID for all the EPA's lawyers all the way to the Supremes to do this injustice.